Transgender Europe Comment
An Option that is no option – Germany’s new law on registering intersex infants

31 October 2013

The German parliament created much fury this summer in international media amending the German Personal Status Law by introducing the option of leaving the gender marker field blank for a newborn. The law will come into effect on Nov 1 2013.

Media articles spoke about the introduction of a “third option”, fantasizing about genderless passports and assuming that trans people would benefit alike. However, these ideas are far from the truth. The amendment introduced has sparked critique from domestic and international intersex activists.

The law determines that only in the event that the gender of an infant cannot be determined the gender marker in the register is to be left blank. Passports, ID-cards and other documents are not affected by the legislation and will feature no blank entry in the gender marker field. This decision will be taken by doctors leaving little room for choice by the parents. Intersex activists fear that as a result parents will try to avoid their child being registered without any gender marker. Parents may also be pressured to consent early to cosmetic (that is non-life threatening) mutilating ‘normalizing’ surgeries. With everybody else having an “M” for male or “F” for female, a blank entry may further expose the child to unwanted attention, discrimination and stigmatization. Also, legislators did not deal with the question of how identity documents will be amended when the child grows older. Activists ask to put this and any future legislation to the ultimate test on how it actually impacts the living situation of intersex persons for an improvement.

In contrast to the media reports, from the transgender perspective not much will change. Transgender persons will not be able to claim a different gender marker on the basis of this law, neither will intersex people have that possibility, as the law only applies to new-born infants. However, raising awareness on the issues and starting a debate on how much gender entries are needed at all, German legislators may have involuntarily pushed boundaries of society’s thinking. While intersex and trans people may alike benefit from a lighter attitude towards gender, further concrete legal steps are now necessary. The abolition of the above mentioned ´normalizing´ practices, as requested by intersex activists, is long overdue. Also, the exclusive authority of medical establishment to determine what gender is needs to be reviewed in light of social realities.

How rigid European societies treat gender can be seen in the fact that changing gendered information in identity documents is heavily regulated in Europe. This is something that many do not even think about, but which is the entry card or stumbling block to society. While we lack information for intersex persons, 24 states in Europe still oblige trans people to undergo sterilization for a changed and matching gender marker on their identity documents, and all countries require a diagnosis of a severe mental health condition as a precondition. Some of these laws even explicitly exclude intersex persons.

Legislators in Europe still squirm away from consequently protecting human rights in this area for a lack of ideas and fear of annoying conservatives. This is irresponsible given that Argentina has recently shown a simple yet respectful solution on how to change identity documents for trans and intersex people.

A mandatory first step for German as well as other legislators prompting change will be to listen to those whose lives are concerned: trans and intersex people themselves.